Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law. Will replacing Justices Antonin Scalia and Anthony Kennedy with Justices Neil Gorsuch and Brett Kavanaugh make a difference as to how the Supreme Court deals with constitutional issues concerning religion? My sense, and it is based on the few opinions we have from the new justices in this area, is that the answer likely is different for the establishment clause than for the free exercise clause. I expect that Gorsuch and Kavanaugh will vote much the same as their predecessors on issues concerning when government actions violate the establishment clause. But I predict we are likely to see a major change with regard to the free exercise clause in the years ahead. Establishment Clause For at least the last few decades, the justices have been split among three different theories as to when government actions violate the establishment clause. The conservative justices have argued that the establishment clause is violated only if the government coerces religious participation or the government discriminates among religions in giving financial benefits. Under this approach, for example, religious symbols on government property do […]
